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DAVID RUSSELL v. WORKMEN'S COMPENSATION APPEAL BOARD (VOLKSWAGEN AMERICA) (12/02/88)

decided: December 2, 1988.

DAVID RUSSELL, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (VOLKSWAGEN OF AMERICA), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of David Russell v. Volkswagen of America, No. A-90749.

COUNSEL

William Jon McCormick, for petitioner.

Raymond F. Keisling, Will, Keisling, Ganassi & McCloskey, for respondent, Volkswagen of America.

Judges Barry and Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Smith. Judge Barry dissents. Judge MacPhail did not participate in the decision in this case.

Author: Smith

[ 121 Pa. Commw. Page 437]

David Russell (Claimant) appeals from a decision of the Workmen's Compensation Appeal Board (Board) which affirmed the referee's decision dismissing Claimant's petition for reinstatement of compensation under The Pennsylvania Workmen's Compensation Act (Act).*fn1 Issues raised for review are whether the referee's alleged misinterpretation of the medical report submitted on Claimant's behalf constitutes a capricious disregard of competent evidence, and whether the referee enjoys complete, unfettered discretion to reject unrebutted medical opinion. The Board's decision is vacated and remanded.

The record indicates that Claimant suffered a work-related injury in March of 1983 which aggravated a pre-existing condition of his right hip, diagnosed as asceptic necrosis. Claimant received compensation for his work-related injury from March 7, 1983 to March 14, 1983 and again from June 3, 1983 to February 6, 1984. On April 29, 1985, Claimant filed a reinstatement petition alleging a recurrence of the March 1983 injury which necessitated surgery and resulted in work loss. The referee, after hearings held June 13, 1985 and September 5, 1985, found that Claimant's present hip disability and medical treatment were unrelated to the aggravation injury of March 1983, and accordingly, denied Claimant's

[ 121 Pa. Commw. Page 438]

    reinstatement petition. Claimant was the only party to present evidence before the referee. Claimant appealed to the Board, which affirmed the referee's decision, whereupon Claimant petitioned this Court for review.

Initially, the appropriate scope of review to be applied to the matter sub judice must be determined in light of Pennsylvania Supreme Court decisions in Farquhar v. Workmen's Compensation Appeal Board (Corning Glass Works), 515 Pa. 315, 528 A.2d 580 (1987); Odgers v. Unemployment Compensation Board of Review, 514 Pa. 378, 525 A.2d 359 (1987); and Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986) as well as this Court's decision in Kirkwood v. Unemployment Compensation Board of Review, 106 Pa. Commonwealth Ct. 92, 525 A.2d 841 (1987). The standard of review enunciated in McGovern to be applied in administrative agency appeals is set forth in Section 704 of the Administrative Agency Law, 2 Pa. C.S. ยง 704, which provides that:

After hearing, the court shall affirm the adjudication unless it shall find that the adjudication is in violation of the constitutional rights of the appellant, or is not in accordance with law, or that the provisions of Subchapter A of Chapter 5 (relating to practice and procedure of Commonwealth agencies) have been violated in the proceedings before the agency, or that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence. (Emphasis added.)

As noted in Kirkwood, this standard unquestionably applies to proceedings in which both parties present evidence as demonstrated in McGovern.

However, where the burdened party is the only party to present evidence and does not prevail before the agency, the "substantial ...


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